Quenneville v. Buttolph
Annotate this Case
Quenneville v. Buttolph (2002-333); 175 Vt. 444; 833 A.2d 1263
2003 VT 82
[Filed 05-Sep-2003]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
2003 VT 82
No. 2002-333
Richard and Bettina Quenneville Supreme Court
On Appeal from
v. Addison Superior Court
Thomas and Mary Buttolph, April Term, 2003
Elizabeth Campbell and Karen Houghton
Matthew I. Katz, J.
Andrew Jackson, Middlebury, for Plaintiffs-Appellees.
Charles S. Martin of Martin & Associates, Barre, for Defendants-Appellants
Campbell and Houghton.
James C. Foley, Jr. of Deppman & Foley, P.C., Middlebury, for
Defendants-Cross-Appellants Buttolph.
PRESENT: Amestoy, C.J., Dooley, Johnson and Skoglund, JJ., and Allen, C.J.
(Ret.), Specially Assigned
¶ 1. AMESTOY, C.J. Defendants Elizabeth Campbell and Karen
Houghton appeal the Addison Superior Court's decision extinguishing their
claim to the Buttolph Farm and its owner corporation, Buttolph Farms, Inc.
Appellants Campbell and Houghton argue that the superior court erred in
finding that no contractual relationship existed between them and the
Buttolphs and in refusing to enforce the terms of the agreements they
reached. Co-defendants Thomas and Mary Buttolph cross-appeal the decision
of the superior court ordering them, as the sole shareholders of Buttolph
Farms, Inc., to convey the farm to plaintiffs Richard and Bettina
Quenneville based on an oral agreement for the sale of the farm. The
Buttolphs argue that the Superior Court erred in finding and enforcing an
oral agreement between the Buttolphs and the Quennevilles for the sale of
the farm. We affirm.
¶ 2. In late March 2000, cross-appellants Thomas and Mary Buttolph
began negotiating with appellant Elizabeth Campbell, a Rutland accountant,
for the sale of the Buttolph Farm, located in Shoreham, Vermont. Campbell
met numerous times with Mr. Buttolph over the next several weeks to discuss
a sale and to examine the farm's financial and tax records. Since the farm
was held in "C" Corporation ownership by Buttolph Farms, Inc., upon selling
the farm as real estate, the Buttolphs would incur double taxation that
would consume an estimated 50% of the $500,000 sale price. During her
meetings with the Buttolphs, Campbell structured an offer advantageous to
both parties: she would acquire the farm by purchasing its owner
corporation Buttolph Farms, Inc., paying far less than the nominal asking
price in the process, while at the same time providing the Buttolphs a
greater return on the sale and avoiding the double taxation incurred by
selling the farm as real estate.
¶ 3. On April 7, 2000, Campbell gave Buttolph a check for $1,000 to
demonstrate that, as her memo on the check said, "we're serious." On April
28, Campbell met with the Buttolphs and their accountant, John Chamberlain,
to discuss the terms of the proposed deal. The parties discussed a deal in
which Campbell and Houghton would purchase the Buttolph Farms, Inc. stock
with an owner-financed payment of $56,000, assume $200,000 of Yankee Farm
Credit debt, permit Tom Buttolph's father to remain in his trailer on the
property, and continue to carry his health insurance through the
corporation. Moreover, the Buttolphs would keep their cows, equipment, and
the right to collect the value of Agrimark stock and USDA drought relief,
expected to be worth $270,000 collectively.
¶ 4. On April 28, 2000 Tom Buttolph requested that Campbell prepare
the following handwritten memo, which he signed:
4/28/00.
We agree to sell our stock in Buttolph Farms, Inc. to Karen
Houghton and Liz Campbell for $56,000. This sale is after we have
taken possession of the cows, the feed the equipment, except for
various small equipment (Grey Matter). Details of this deal will
be stipulated in a formal agreement. To be reviewed and signed
later.
T. Buttolph II
/s/ Thomas Buttolph II
On May 22, 2000 the Buttolphs' attorney sent a letter to the attorney of
Campbell and Houghton denying the existence of any binding agreement
between the parties. At various points in their ongoing negotiations,
Campbell and Buttolph also discussed the disposition of sundry farm
equipment referred to as "grey matter." Although the parties agreed that
the value of the "grey matter" would be included in the overall sale price,
the superior court found that their disputes about the exact items included
in this list were never resolved.
¶ 5. Before the Buttolphs had started the negotiations with
Campbell and Houghton, plaintiff-appellees, the Quennevilles, had looked at
the farm for possible purchase. Within a few days after their April 28
meeting with Campbell, the Buttolphs began negotiating for sale of the farm
with the Quennevilles. The Buttolphs and Quennevilles met as many as six
times to discuss the terms and structure of the sale. The negotiations
culminated in a July 6, 2000 meeting between the Buttolphs, Quennevilles,
and their respective attorneys, during which, according to the superior
court, the parties orally agreed to the terms of the sale. Under those
terms, the Quennevilles would purchase Buttolph Farms, Inc., thereby
acquiring the farm itself, by assuming approximately $200,000 of Yankee
Farm Credit debt, financing through Chittenden Bank an $80,000 payment for
an unmortgaged 148 acre parcel of the farm, and paying a balance of $70,000
to the Buttolphs. This last payment consisted of $5000 that the
Quennevilles had already paid in cash and a $65,000 seller-financed
promissory note with a rate of nine percent and a five-year balloon note.
Although a written agreement was prepared by their attorneys, it was never
signed, and the trial court found that only an oral agreement was reached
between the parties.
¶ 6. In late May 2000, Mr. Quenneville planted corn at the Buttolph
Farm at a cost of between $20,000 and $30,000. On June 8, Quenneville
moved his herd of 400 cattle from New York to the Buttolph Farm. He took
care of Buttolph's sixty cows for several months without getting paid for
the labor. The Quennevilles also upgraded and repaired, over the course of
the summer and at their own expense, the milking parlor, barn, roads,
manure pit, fencing, and tenant house. Finally, at some point it was
orally agreed that the Buttolphs would move out of the main farmhouse by
August 15, 2000. Based on this agreement, the Quennevilles enrolled their
special-needs child in the Middlebury school district, of which Shoreham is
a member. While engaged in these activities, and since the sale could not
be closed while a lawsuit against Campbell and Houghton was in progress
(see below), the Quennevilles began negotiating with the Buttolphs for a
lease agreement. Although they paid a monthly rent of $3,000 while the
case was pending, a written lease agreement was never executed.
¶ 7. On June 2, 2000, the Buttolphs filed suit in the Rutland
Superior Court seeking a declaratory judgment that their agreements with
Campbell and Houghton were unenforceable, as well as damages for
interference with contractual relationships, abuse of process, and
malicious prosecution. On June 14, Campbell and Houghton filed an answer
and counterclaim seeking specific performance of their oral agreement
memorialized in the note signed by Tom Buttolph. On November 7, 2000,
after learning that the Buttolphs were considering a settlement with
Campbell and Houghton, the Quennevilles filed a complaint in the Addison
Superior Court against Campbell, Houghton, and the Buttolphs, seeking
specific performance of their oral agreement with the Buttolphs, legal and
equitable damages, costs, and interest. On December 1, 2000 the
Quennevilles filed an intervenor complaint in the Rutland litigation,
seeking the same relief as in their Addison county complaint. On February
22, 2001, Campbell and Houghton filed a third-party complaint against
Buttolph Farms, Inc. On May 2, 2001, the Rutland and Addison cases were
consolidated in the Addison Superior Court. A hearing on the merits was
held before Judge Matthew I. Katz, concluding on January 2, 2002.
¶ 8. On March 19, 2002, the Addison Superior Court issued an entry
order in which it declared that Campbell and Houghton had no enforceable
contract for the purchase of the Buttolph Farm property or Buttolph Farms,
Inc. stock and ordered the Buttolphs to sell the farm to the Quennevilles
based on their oral contract. In relevant part, the superior court found
that while the handwritten note signed by Mr. Buttolph on April 28
established the basic elements of an oral agreement with Campbell and
Houghton, it also anticipated the preparation of a formal agreement at a
later date. Moreover, according to the court, particular issues left
unresolved were the interest rate, amount of payments, amount of a balloon
note, items included in the "grey matter," security for purchasers' note,
and a possible right of first refusal to be retained by the Buttolphs on a
small portion of the farm. Consequently, according to the superior court,
the Buttolphs entered neither a written agreement that encompassed all the
terms agreed upon, nor an oral agreement that encompassed all the terms
discussed.
¶ 9. Defendants Campbell and Houghton filed a motion to reconsider
on April 3, 2002. In response, the Addison Superior Court filed another
entry order on May 17, 2002. In it, the court first found that, as a
matter of fact, the Buttolphs never reached an agreement with Campbell and
Houghton regarding the composition of the "grey matter" list. The court
further found that, as a matter of law, the composition of the "grey
matter" was a substantial part of the intended contract. Finally, the
superior court reaffirmed its conclusion that, since Campbell's agreement
with the Buttolphs was for owner financing, and since the court cannot
substitute a different agreement for one the parties made, her ability to
pay cash was irrelevant.
¶ 10. On June 27, 2002 the Addison Superior Court filed its judgment
order extinguishing the claim of Campbell and Houghton to Buttolph Farms
and Buttolph Farms, Inc., and ordering the Buttolphs to convey the Buttolph
Farms premises and stock to the Quennevilles in accordance with the terms
of the purchase and sale agreement drawn up at their July 6, 2000 meeting.
Since the Quennevilles' New Haven, Vermont, farm was to be used as
collateral in the original purchase and sale agreement, and part of that
farm had subsequently been sold off to a third party, the court amended the
agreed-upon collateral to consist of, in part, the remaining premises owned
by the Quennevilles in New Haven, the Buttolph farm, and other specified
property. This appeal followed.
¶ 11. We will overturn the factual findings of a trial court only
if they are clearly erroneous. V.R.C.P. 52. "[F]indings of fact must
stand unless, viewing the record in the light most favorable to the
prevailing party and excluding the effect of modifying evidence, there is
no credible evidence to support the findings." Hoover v. Hoover, 171 Vt.
256, 258, 764 A.2d 1192, 1193 (2000). A trial court's discretionary
rulings are examined under an abuse of discretion standard of review, which
"requires a showing that the trial court has withheld its discretion
entirely or that it was exercised for clearly untenable reasons or to a
clearly untenable extent." Vt. Nat. Bank v. Clark, 156 Vt. 143, 145, 588 A.2d 621, 622 (1991). A grant of the equitable remedy of specific
performance is at the trial court's discretion. Davis v. Hodgdon, 133 Vt.
49, 53, 329 A.2d 669, 672 (1974).
I.
¶ 12. We address first whether the superior court properly found
that the Buttolphs were not contractually bound to sell their farm to
appellants Campbell and Houghton. Appellants Campbell and Houghton argue
that the court erred both by finding that no agreement was reached on the
issues of financing, "grey matter," and a right of first refusal, and that
these terms were material to an agreement. Appellants also argue that the
April 28, 2000 memo signed by Buttolph is sufficient on its face to
establish a contract between the parties. We affirm the superior court's
findings and legal conclusions.
¶ 13. We initially examine whether the Buttolphs entered into an
oral agreement with Campbell and Houghton that encompassed all the material
terms discussed. We affirm the finding of the superior court that three
significant terms were absent from any oral agreement reached between the
Buttolphs, Campbell, and Houghton. Under the deferential "clearly
erroneous" standard of review, Mr. Buttolph's testimony at trial of the
constantly changing nature of the "grey matter" list is sufficient to
uphold the superior court's finding that this term was never agreed upon.
Similarly, the trial testimony of the Buttolphs' accountant indicated that
while an agreement on the issue of the right of first refusal was perhaps
within sight, it nevertheless was never reached. The superior court's
finding on this issue cannot be said to be without credible evidence, is
not clearly erroneous, and consequently must be upheld. See Hoover, 171
Vt. at 258, 764 A.2d at 1193. Finally, the trial testimony of the
Buttolphs' accountant that the parties discussed the necessity of reaching
a mutually agreeable interest rate in the future is sufficient to place
well beyond the realm of the "clearly erroneous" the superior court's
finding that financing terms were never agreed upon.
¶ 14. We also affirm the court's conclusion that the terms not
agreed upon were material to the sale agreement. In Benya v. Stevens &
Thompson Paper Co., 143 Vt. 521, 526, 468 A.2d 929, 931 (1983), we held
that since the defendant was expected to finance three-quarters of the
purchase price of real estate, financing was a material and integral part
of the sale contract. Id. Similarly, in this case, financing was indeed a
material term of the proposed contract because seller was to finance
one-third of the purchase price. See also Reynolds v. Sullivan, 136 Vt. 1,
3, 383 A.2d 609, 611 (1978) (holding interest, payment intervals, and
security to be terms essential to the formation of contract). The trial
court found that there was "never any agreement as to the terms of the note
- the interest rate, the amount of monthly payments, the amount of the
final payment" or security on the note. Since "[v]agueness, indefiniteness
and uncertainty of expression as to any of the essential terms of an
agreement have been held to preclude the creation of an enforceable
contract," Evarts v. Forte, 135 Vt. 306, 310, 376 A.2d 766, 769 (1977)
(emphasis added), the absence of an agreement on financing precludes the
formation of a contract, and thus also makes moot the remaining issue of
the materiality of the "grey matter" and right of first refusal terms.
Campbell and the Buttolphs did not reach "a meeting of the minds on all
essential details of the proposed sale." Benya, 143 Vt. at 526, 468 A.2d
at 931.
¶ 15. Campbell and Houghton also argue that they were prepared to
pay cash at the time of closing, and therefore any agreement on seller
financing was not material. We agree with the trial court, however, that
Campbell's willingness to pay cash at the time of closing is irrelevant to
the formation of the contract where it was not discussed with or agreed to
by the Buttolphs. See Evarts, 135 Vt. at 310, 376 A.2d at 769 ("It is
never enough that the parties think they have made a contract; they must
express their subjective intent in a manner that is capable of
understanding."); Norton & Lamphere Constr. Co. v. Blow & Cote, Inc., 123
Vt. 130, 135, 183 A.2d 230, 234 (1962) ("It is a general rule of
construction of contracts that the language and acts of a party to a
contract are to receive such a construction as at the time [the party]
supposed the other [contracting individual] would give to them . . . [and
the party] will not, at a later time, be permitted to give them a different
operation in consequence of some mental reservation.").
II.
¶ 16. The Buttolphs contend that the trial court erred by
concluding that the Buttolphs and the Quennevilles reached an agreement on
all essential elements for the sale of the farm. As noted above, while a
binding agreement need not contain each and every contractual term, it must
contain all of the material and essential terms. See Evarts, 135 Vt. at
309, 376 A.2d at 768 ("[I]f an instrument that purports to be a complete
contract does not contain, or erroneously contains, the substantial terms
of a complete contract, it is ineffective as a legal document."). The
existence of such an agreement is a question of fact, Town of Rutland v.
City of Rutland, 170 Vt. 87, 90, 743 A.2d 585, 587 (1999), which depends,
in part, on the reasonable inferences that may be drawn from the facts of
the case. Bixler v. Bullard, 172 Vt. 53, 58, 769 A.2d 690, 694 (2001). On
appeal, we will overturn a trial court's factual finding only if it is
clearly erroneous. Milot v. Calkins, 150 Vt. 537, 540, 554 A.2d 260, 262
(1988). The superior court determined that the Quennevilles and the
Buttolphs reached an oral agreement on all material terms, including the
property to be sold, total price, amount financed and terms of financing,
including the interest rate, amount of balloon note, assumption of farm
debt, and amount of cash payment, and the closing date. As this finding of
the trial court is supported by the evidence, it is not clearly erroneous.
See id.
¶ 17. The Buttolphs also claim that they expressed a clear intent
not to be bound by the agreement, and therefore the trial court erred in
enforcing the "oral dealings" of the Buttolphs and the Quennevilles. The
parties' intent and their manifestation of intent distinguish a preliminary
agreement that is binding despite the need for a more detailed document of
agreement from a preliminary agreement that still requires a final document
before the parties are bound by contract. Bixler, 172 Vt. at 58, 769 A.2d
at 694. The intent of the parties to be bound, however, is a question of
fact to be determined by examining the objective words and deeds of the
parties. Id. Here the trial court found that the parties manifested a
mutual intent to be bound by agreement. We will overturn a factual finding
of the trial court only where there is no credible evidence to support it,
regardless of whether there is substantial evidence to contradict it.
Agway, Inc. v. Brooks, 173 Vt. 259, 262, 790 A.2d 438, 441 (2001). There
was credible evidence presented at trial to support this finding, and
therefore it must stand.
¶ 18. The Buttolphs argue that the trial court erred in ordering
specific performance of the oral contract between the Buttolphs and the
Quennevilles because the oral contract violated the Statute of Frauds.
They argue that the Quennevilles' actions did not constitute part
performance of the contract to take it out of the Statute of Frauds because
such actions were entirely attributable to the Quennevilles' role as
leaseholders of the property. An award of specific performance on a
contract rests within the sound discretion of the trial court. Davis v.
Hodgdon, 133 Vt. 49, 53, 329 A.2d 669, 672 (1974). An oral agreement may
be removed from the Statute of Frauds contained in 12 V.S.A. § 181 if the
proponent "can show that, in reliance on the agreement, he or she suffered
a substantial and irretrievable change in position." Bassler v. Bassler,
156 Vt. 353, 358, 593 A.2d 82,86 (1991). Where there is an oral contract
for the sale of land, a purchasing party who is in possession of the land
and who makes substantial improvements to the property is entitled to
specific performance of the agreement, Gove v. Gove's Adm'r, 88 Vt. 115,
117, 92 A. 10, 11 (1914), and this may take the oral contract out of the
Statute of Frauds. Jasmin v. Alberico, 135 Vt. 287, 290, 376 A.2d 32,
33-34 (1977). Money payments or actions that are indistinguishable from
those of a tenant responsible for the maintenance of the leased premises
are not sufficient to remove the agreement from the requirements in the
Statute of Frauds however. Jasmin, 135 Vt. at 290, 376 A.2d at 34. In
Bassler v. Bassler, 156 Vt. at 359, 593 A.2d at 86, we held that the party
requesting specific performance had shown a substantial and irretrievable
change in position with the following improvements: the installation of a
furnace, hot water heaters, insulation, new siding, flooring, windows, and
a deck; the excavation and gradation of a road to the house; the removal of
a barn; and the clearing of brush around a pond. Where the party promoting
specific performance repaired a back porch, had gas piped to the house,
made electrical and plumbing repairs and did some landscaping, we held that
these were not sufficient because the improvements were no different from
those done by a tenant responsible for maintenance. Jasmin, 135 Vt. at
290, 376 A.2d at 34.
¶ 19. In the case at bar, the Quennevilles had possession of the
land. They moved their herd of 400 cows from New York to the Buttolphs
farm in Shoreham. The trial court found that the Quennevilles made
improvements and repairs to the farm property in reliance on the oral
agreement for purchase of the farm, subject only to the Campbell/Houghton
challenge in court. These improvements included: installing a new furnace
in the house for the farmhands; upgrading the milking parlor substantially
by changing motors, installing automatic takeoffs on the milking system,
and fixing the air compressor, water leaks, and the crowd gate rails;
repairing the road to the fields and the road to the barn; removing debris,
wood, and dead animals; and repairing the overflowing manure pit and the
drainage to the fields. The trial court found that the Quennevilles
undertook these repairs with the understanding that they would be
purchasing the property. The court observed, "The lease issue was raised .
. . solely because there could be no closing until the Campbell/Houghton
claim was defeated. The [unexecuted] lease never constituted any agreement
or indication that there was a move away from a sale, or a failure to reach
agreement on a sale." Additionally, the trial court found that the
Quennevilles registered their son, who is in a wheelchair, in the district
school for Shoreham based "on the strength of the firm oral agreement to
sell the farm, contingent only on defeating the Campbell/Houghton claim."
The court found that this was a particularly taxing commitment that could
not be undone.
¶ 20. The Buttolphs rely on Bell v. Town of Grafton, 133 Vt. 1, 328 A.2d 408 (1974), for their argument that the actions of the Quennevilles
must be unequivocally referable to the oral agreement for sale of the farm
in order to remove the agreement from operation of the Statute of Frauds.
We disagree with the Buttolphs' characterization of Bell as requiring all
acts of improvement to be "unequivocally referable" or "solely due" to the
oral contract. Instead, we read Bell to stand for the proposition that,
where there was no identifiable agreement and the improvement actions of
the plaintiff were "entirely assignable to his situation as licensee from
the town to use the[] premises", id. at 3, 328 A.2d at 409, the trial
court's decision denying specific performance was not error.
Significantly, the "root difficulty" for the proponent of specific
performance in Bell was the party's failure to show a "meeting of the
minds" based on an identifiable agreement. Id. This Court found that
"[p]ossession under a purchase contract sufficient to remove the Statute of
Frauds barrier was not established, and the [trial] court's decision
[denying specific performance] must be sustained." Id. at 3, 328 A.2d at
409. Here, unlike the situation in Bell, an agreement for purchase of the
land existed between the Buttolphs and the Quennevilles.
¶ 21. The trial court's findings support a determination that the
Quennevilles, in reliance on the agreement to purchase, suffered a
substantial and irretrievable change in position. The trial court did not
abuse its discretion in awarding specific performance on the oral contract.
¶ 22. Additionally, the Buttolphs claim that the trial court erred
by effectively "remaking" the contract regarding the collateral securing
the $65,000 seller-financed promissory note and that instead the court
should have declared that the contract could not be specifically enforced
due to impossibility after the Quennevilles sold part of the farm that was
to be used as collateral for the $65,000 note. The Buttolphs characterize
the superior court's order to convey the Buttolph farm to the Quennevilles
substantially in accordance with the terms and conditions set forth in the
July 6 purchase and sale agreement as a "remaking" of the contract because
of an "alteration" of the collateral securing the seller financing. We
disagree. The superior court's judgment order - approved as to form by
both parties - contained a provision requiring a portion of the collateral
for the $65,000 promissory note referenced in the purchase and sale
agreement to consist of: "All of the lands and premises of Richard
Quenneville and Bettina Quenneville, d/b/a Jentraco Farms, existing in New
Haven, Vermont." The trial court found that there was an agreement that
the total price of sale would be $350,000, consisting of the Quennevilles'
assumption of the $200,000 Yankee Farm debt, a seller-financed $65,000
promissory note with an interest rate of nine percent and a five-year
balloon, the payment of $80,000 cash, and the $5,000 already paid. The
agreement provided that the Quennevilles would make monthly payments of
$823 on the promissory note, and the note was to be secured by a mortgage
deed to the Buttolphs on the New Haven farm.
¶ 23. The Buttolphs assert that the Quennevilles sold more than half
of their New Haven farm between the time it was originally proposed as
collateral and the date of the court's judgment order. We are not here,
however, confronted with an instance where the trial court is remaking a
contract rather than construing one. See Vt. State Colls. Faculty Fed'n v.
Vt. State Colls., 141 Vt. 138, 144, 446 A.2d 347, 350 (1982) ("It is the
duty of this Court to construe contracts; we will neither make or remake
them for the parties, nor will we ignore their provisions."). There is no
representation by the Buttolphs that the "New Haven Farm" collateral set
forth in the superior court's judgment order of June 27, 2002 is
inadequate. Indeed, the Buttolphs argue that "[i]t is immaterial whether
as a matter of fact said collateral was in fact adequate." We are
unwilling to conclude that the trial court's reference to collateral
substantially similar to that envisioned in the purchase and sale agreement
and still adequate to secure the seller financing is a "remaking" of a
contract sufficient to undo the trial court's determination that the
Buttolphs and the Quennevilles reached an agreement on all essential
elements for the sale of the farm. The terms and conditions of the
purchase and sale agreement demonstrate that the parties contemplated and
intended for the promissory note to be "secured by a mortgage deed to the
Buttolphs in the amount of $65,000.00", and the court, in its order,
included the mortgage deed in the description of collateral for the
promissory note.
¶ 24. The Buttolphs' final argument is that the trial court erred
in refusing to allow the testimony of their expert witness. We review a
trial court's refusal to allow testimony of an expert witness for an abuse
of discretion. Hutchins v. Fletcher Allen Health Care, 172 Vt. 580, 581,
776 A.2d 376, 378 (2001) (mem.). A court's decision surrounding the
competency of an expert witness will not be disturbed on appeal unless
clearly erroneous. Turgeon v. Schneider, 150 Vt. 268, 275, 553 A.2d 548,
552 (1988). The trial court excluded the expert testimony for two reasons:
(1) because the testimony was on a question of law and (2) the moving party
had not demonstrated the competence of the witness as an expert in the area
of testimony. The trial court explained that the proposed expert testimony
was on a question of law because it would have described the obligations of
a tenant farmer under the particular agreement involved in the case or
those implied by law. The court further stated that, based on this
proposed testimony, the witness was not competent to testify as an expert
based on his limited experience with the specific subject of the testimony.
The Buttolphs have not clearly and affirmatively demonstrated that the
trial court abused its discretion in excluding the admission of this expert
testimony. See Villa v. Heilmann, 162 Vt. 543, 550, 649 A.2d 768, 773
(1994) ("court's ruling [excluding testimony of an expert witness] is not
subject to revision unless the appealing party clearly and affirmatively
demonstrates that such discretion has been abused. . . .").
Affirmed.
FOR THE COURT:
_______________________________________
Chief Justice
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